Andhra Pradesh High Court - Amravati
Eo, Ttd, Chittoor Dist vs Chairmancumpresiding Officer, ... on 27 January, 2020
Author: M. Venkata Ramana
Bench: J K Maheshwari, M.Venkata Ramana
THE CHIEF JUSTICE J.K. MAHESHWARI
AND
JUSTICE M.VENKATA RAMANA
WRIT APPEAL No. 923 of 2017
Judgment: (Per Justice M. Venkata Ramana)
This writ appeal is directed against orders of learned single Judge
in W.P.No.15991 of 2009, dated 02.06.2017. By the judgment impugned,
the order of reinstatement of the respondent nos. 2 to 18 directed by the
1st respondent-Industrial Tribunal-cum-Labour Court, Ananthapur, by common award in I.D.Nos. 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 211, 212, 213 and 214 of 2007, dated 31.03.2009, was confirmed.
2. The factual matrix relevant for the present writ appeal is, as under:-
(i) The respondent nos. 2 to 18 were volunteers at Annadhanam canteen being run by the appellant in the year 1985. They were attending to duties in the canteen, dining hall, apart from cleaning dining tables, utensils and attending to other works as workmen. The appellant also introduced Nityannadhanam scheme for which purpose the respondent nos. 2 to 18 were appointed for rendering services to the pilgrims. The nature of work assigned to the respondent nos. 2 to 18 was continuous, permanent and perennial in nature, starting at 8.00 a.m. and ending at 11.00 p.m. every day. These respondents, thus, worked for the appellant for more than 240 days in a calendar year of 12 months and, thus, are entitled for regularization of their services.2
(ii) However, the services of the respondent nos. 2 to 18 were terminated on 30.04.1988, stated to be by an oral order, which is in violation of Section 25-(F) and (G) of Industrial Disputes Act and Rules 78 and 79 under the said Act.
(iii) The appellant had also retained about 160 persons, similarly placed as of the respondent nos. 2 to 18, regularizing their services in the year 1988. The appellant also engaged workers on contract basis in the canteen, in violation of various orders of this Court as well as the provisions of the Industrial Disputes Act. Provisions of the Limitation Act, 1963 cannot be applied to the claim of the respondent nos. 2 to 18.
3. Thus alleging, the respondent nos. 2 to 18 filed 17 individual applications along with two others under Section 2-A of the Industrial Disputes Act against the appellant questioning their termination from services, being illegal, invalid and arbitrary and to direct the appellant to reinstate them into service with continuity of service, full back wages and all attendant benefits.
4. The appellant resisted the claim of the respondent nos. 2 to 18 before the 1st respondent tribunal mainly contending that provisions of the Industrial Disputes Act did not apply to it, since it is not an industry. Denying the claim of the respondent nos. 2 to 18, it was stated that these respondents were not on its roles since they were not appointed in any sanctioned post duly following selection process nor was there any such cadre in the Service Rules, as per G.O.Ms.No.390 dated 06.05.1981. It further claimed that since the service offered by the volunteers was voluntary in nature, question of termination or reinstatement into service 3 did not arise. It also contended that a decision was taken to reduce the volunteers to 160 w.e.f. 01.04.1998 and therefore, services of 140 persons was dispensed with, for want of sufficient work load. It further contended that, in September, 1991, services of first 50 persons out of 140 were recalled to duty and those who were engaged on daily wages upto 31.03.1998 were regularized and continued in TTD services as per G.O. referred to above. It was further claimed that the respondent nos. 2 to 18 were not on its roles during the relevant period and hence their services were not regularized. It also questioned filing such applications after long delay of 19 years after alleged termination of services claiming that such applications could not have been entertained by the 1st respondent.
5. By the common award referred to above, the 1st respondent accepted the prayer of the respondent nos. 2 to 18 in their applications directing their reinstatement into service on the ground that there was violation of section 25-F of the Industrial Disputes Act, while denying the back wages. The 1st respondent also held that the nature of work of these respondents being continuous, perennial and ever increasing, who were engaged in systematic activity in an organized way, Section 2(j) of Industrial Disputes Act is attracted falling within the purview of definition of 'industry'. It was further observed that there was an admission in the counter of the appellant as to nature of services rendered by the respondent nos. 2 to 18, who were being paid monthly amounts regularly for such services, depending on the nature of work and since engaged in different categories. Thus, the 1st respondent also held that the relationship of 'employer and employee' subsisted. Delay of 19 years in making such applications was held to be of no consequence, relying on 4 judgments of Hon'ble Supreme Court in Ajaib Singh v. The Sirhind Co- operative Marketing-cum-Processing Service Society Ltd.1 and in Indian Iron and Steel Co. Ltd. v. Prahlad Singh2. However, I.D.Nos.199 of 2007 and 210 of 2007 were dismissed by the 1st respondent filed by two other applicants.
6. Questioning the order so passed by the 1st respondent, the writ petition was filed by the appellant essentially questioning the manner by which the 1st respondent tribunal entertained the applications under Section 2-A of the Industrial Disputes Act and further questioning the direction as to reinstatement of respondent nos. 2 to 18 claiming that ordering compensation would have been proper.
7. On behalf of the respondent nos. 2 to 18, the claim of the appellant in the writ petition was resisted mainly on the ground that question of delay has no bearing in considering their applications since the Limitation Act, 1963 did not apply to the proceedings under the Industrial Disputes Act. A reference was also made to directions of the erstwhile High Court of Andhra Pradesh in W.P.No.14611 of 1990, dated 24.12.1990, whereby the appellant was required to consider to take the services of the respondent nos. 2 to 18 first in case of necessity, when more volunteers for the purpose of canteen and Nityannadhanam scheme were required and also if the appellant was considering any scheme of regularization in regard to the volunteers, who were there by 31.03.1988, including the eligibility of the respondent nos. 2 to 18 for such purpose. Referring to nature of Nityannadhanam scheme being permanent and
1. AIR 1999 SC 1351
2. (2001) SCC 424 5 services rendered by the respondent nos. 2 to 18 for more than 240 days, in view of the material available on record, it was contended that the reinstatement so ordered stood justified. Further contention advanced was that adverse inference was rightly drawn by the 1st respondent tribunal on account of the failure to produce the relevant record pertaining to respondent nos. 2 to 18, since production of such record would have exposed the true facts including the services rendered by the respondent nos. 2 to 18 for 240 days in twelve calendar months as required under Section 25-F of the Industrial Disputes Act.
8. Basing on the contentions of the parties, learned Single Judge settled the following points for determination "(a) Whether the 1st respondent was correct in law in entertaining applications under Section 2-A of the Act filed by respondent nos. 2 to 18 after a lapse of 19 years?
(b) Whether the fact that respondent nos. 2 to 18 have been engaged as volunteers would exclude them from category of 'workman' under S. 2(s) of the Act?
(c) Whether the respondent nos. 2 to 18 had worked for more than 240 days, and whether their termination was violative of Section 25-F of the Act/ and
(d) Whether the 1st respondent erred in law in granting relief of reinstatement to respondent nos. 2 to 18?"
9. With reference to the delay of 19 years while considering point
(a), the learned Single Judge observed that no plea of prejudice was raised by the appellant, though there was no explanation on the part of the respondent nos. 2 to 18 to explain away this delay and merely on the ground of delay, the applications of the respondent nos. 2 to 18 could not have been rejected, accepting the reasons in entertaining applications under Section 2-A of Industrial Disputes Act.
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10. With reference to points (b) and (c), having regard to the nature of work carried out by the respondent nos. 2 to 18, nomenclature of 'volunteers' given to them, being in a way misleading, it was observed that the appellant could not have avoided its liability under the provisions of the Industrial Disputes Act. They worked for more than 240 days in a calendar year of 12 months whereby the 1st respondent had recorded a finding in the reasons assigned. Thus, these two points were answered in favour of the respondent nos. 2 to 18 and against the appellant.
11. With reference to point (d), the learned Single Judge elaborately discussed mainly relying on the observations of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyala (D.Ed.) 3 and others as well as Jasmer Singh . State of Haryana and another4 and found justification in directing reinstatement of respondent nos. 2 to 18. Thus, the contention on behalf of the appellant that there was no necessity to reinstate the respondent nos. 2 to 18, who could be suitably compensated in monetary terms, was rejected. Thus, observing that the award of the 1st respondent, being proper and justified and also considering that the respondent nos. 2 to 18 did not seek back wages filing a separate writ petition, confirmed the order of the 1st respondent.
12. In that process of reasoning, it was also observed that termination of services of the respondent nos. 2 to 18 was in violation of Section 25-F of the Industrial Disputes Act, confirming the findings so recorded by the 1st respondent tribunal by its award. 3 . (2013) 10 SCC 324 4 . (2015) 4 SCC 458 7
13. Thus, the writ petition filed by the appellant was dismissed recording cogent and acceptable reasons. It is against this order of the learned single judge, the present writ appeal is preferred.
14. In this writ appeal, similar grounds are urged pointing out the effect of unexplained delay, by the respondent nos. 2 to 18 and that they did not fall within the purview of Section 2(s) of the Industrial Disputes Act, since their services were voluntary in nature. Further grounds urged are that the respondent nos. 2 to 18 were never appointed by the appellant against any regular vacancy and even if order of termination is in violation of Section 25-F of the Industrial Disputes Act, as per the law laid down by the Hon'ble Supreme Court, reinstatement or back wages, cannot be automatic and suitable compensation alone is appropriate. Canvassing against the reasons assigned in the order under appeal, it is further contended that the decision of Apex Court as well as the order of the Division Bench of erstwhile High Court of Andhra Pradesh at Hyderabad in similar situation were not properly appreciated, it is requested to allow the writ appeal. It is further pointed out that some of the employees, who were similarly placed as of respondent nos. 2 to 18 were awarded compensation of Rs.40,000/- by the Division Bench of erstwhile High Court of Andhra Pradesh, which was later enhanced by the Hon'ble Supreme Court to Rs.1,00,000/-.
15. On behalf of the respondent nos. 2 to 18, the order under appeal is supported for the reasons stated and reinforcing with the assistance of the decisions considered in the order of the learned single Judge.
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16. Now, the following points arise for determination:
1. Whether delay of 19 years in filing application under Section 2-A of Industrial Disputes Act by the respondents 2 to 18 has any effect?
2. Whether directing reinstatement of the respondents 2 to 18 on the premise that they were workmen in terms of Section 2(s) of Industrial Disputes Act and that there was violation of Section 25-F of the said Act, who had worked for more than 240 days in 12 calendar months, is proper?
3. To what relief, the parties are entitled to?
Point No.1:-
17. Provisions of the Limitation Act are not applicable to the proceedings under the Industrial Disputes Act. Learned single Judge took into consideration the observations of Hon'ble Supreme Court in Ajaib Singh v. The Sirhind Co-operative Marketing-cum-Processing Service Society Ltd (1 supra). which has been followed in number of later decisions including Indian Iron and Steel Co. Ltd. v. Prahlad Singh (2 supra). The appellant did not make out any real prejudice on account of the long delay of 19 years in presenting applications before the 1st respondent tribunal by the respondent nos. 2 to 18. Despite no explanation offered by them for this delay, in the circumstances, it cannot be a reason to reject the claims of the respondents. Therefore, on this ground, as rightly observed by the learned single Judge, the 1st respondent tribunal could not have rejected the applications filed by the respondent nos.2 to 18 under Section 2-A of Industrial Disputes Act. Findings of the learned single Judge in this respect are appropriate and based on proper appreciation of law and fact.
18. In the same context, on behalf of the appellant, reliance is sought to be placed in Prabhakar v. Joint Director, Sericulture 9 Department and Ors.5, Indian Iron & Steel Co. Ltd. (2 supra), and Tirumala Tirupati Devasthanams, Tirupati v. N. Vasudevaiah and others6. These rulings are based on different facts. Though the effect of long delay in approaching Labour Court or Industrial Tribunal by the workmen was considered in these rulings, in the particular and peculiar facts of this case, which were rightly considered by the learned single judge, they do not offer assistance.
POINT No.2:-
19. The admitted situation of services rendered by the respondent nos. 2 to 18 as 'volunteers' is a determinative factor in this case. In para 38 of the award of the 1st respondent, the period or duration, during which the respondent nos. 2 to 18 were engaged in such activity, either in Annadhanam canteen or for the purpose of Nityannadhanam scheme, is stated. It is also not in dispute that the respondent nos. 2 to 18 were paid their remuneration on monthly basis in the nature of regular wages, which fact was considered by the 1st respondent tribunal basing on the evidence lead before it in the course of regular enquiry. The material on record makes out that the nature of services rendered by the respondent nos. 2 to 18 was systematic, orderly, in an organized manner, with nature of work being continuous and perennial, with ever increasing activity. It is not the case of the appellant that the respondent nos. 2 to 18 attended to such activity every day serving as volunteers.
20. In para-21 of the order impugned, in this context, it was observed as under:
5 . AIR 2016 SC 2984 6 . 2017(1) ALD 306 (DB) 10
"21. It may be that petitioner had given to respondent nos. 2 to 18 the nomenclature of 'Volunteers'. It is unnatural for any young person, unless he has renunciated the world and accepted to be a monk, to work continuously for an employer as a volunteer for more than 240 days in 12 calendar months. A finding has been recorded by the 1st respondent that regular wages were being paid to persons like the petitioners even though they were called 'volunteers'. Thus there was employer-employee relationship between the petitioner and respondent nos. 2-18."
21. In the given factual back drop, these observations are quite apt.
22. By calling the respondent nos. 2 to 18 as 'volunteers', the appellant could not have avoided its liability in terms of the Industrial Disputes Act, taking recourse to termination of their services without following Section 25-F of the said Act.
23. Section 25-F of Industrial Disputes Act reads as follows:-
25F. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until--
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period 32 of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 2*[for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette].
These provisions are mandatory in terms.
24. Having had accepted their services regularly and continuously for a systematic and organized work or activity, the appellant could not have afforded to terminate their services orally. Added to it, this way of termination of their services is undisputed. By adopting nomenclature as volunteers, the appellant could not have excluded them from the purview 11 of Section 2(s) of Industrial Disputes Act to call them 'workmen' in terms thereof. Having regard to the factual proof on record of continuous service rendered by the respondent nos. 2 to 18 for 240 days, when observations are so recorded by the learned single judge in this respect for valid reasons, they cannot be lightly and easily be interfered with.
25. The learned single Judge relied on Deepali Gundu Surwase's case (3 supra) in this case to support the award of the 1st respondent in directing reinstatement of the respondent nos. 2 to 18. These observations were followed in Jasmer Singh's case(4 supra). However, before the learned single Judge, the cases of Sita Ram and others v. Moti Lal Nehru Farmers Training Institute7 and Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kuymar Seal and others8 were relied on to support the contention of the appellant that reinstatement could not have been directed and only compensation should have been awarded. These two rulings are attempted to be relied on in this appeal also.
26. In the same context, Bharat Sanchar Nigam Limited v. Man Singh9 and Assistant Engineer, Rajasthan Development Corporation and another v. Gitam Singh10 are also relied on for the appellant.
27. Learned single Judge has succinctly explained the import of Deepali Gundu Surwase's case (3 supra) applying to the facts in this case, while assigning reasons how Sita Ram's case (7 supra) is not applicable. 7.2008(5) SCC 75 8.2010 (6) SCC 773
9.(2012) 1 SCC 558
10.(2013) 5 SCC 136 12
28. When very termination of services of the respondent nos. 2 to 18 suffered from such vice, amounting to an illegality, the view so taken by learned single Judge is appropriate. It is also desirable to extract the observations of the Hon'ble Supreme Court in Deepali Gundu Surwase's case (3 supra) for benefit and they are as under:-
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employee. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages."
29. Finding such difficult situation to effectively assail the order of the learned single Judge, learned Standing Counsel for the appellant, in the course of hearing in this appeal, fairly conceded his difficulty and rightly.
30. Reference is also made to the judgments of erstwhile High Court of A.P., Hyderabad in W.P.No.987 of 2010, 827, 1036 and 1062 of 2010, dated 27.09.2013, as well as Writ Appeal No. 1110 of 2015, dated 17.03.2016, for the appellant in respect of claims of similarly placed employees of TTD, where compensation than reinstatement was ordered. Reliance is placed on the order of Hon'ble Supreme Court in Special Leave Petition No. 4013 of 2015 preferred against the order dated 13.01.2017 in 13 W.A.No.987 of 2010 referred to above of the erstwhile High Court of Andhra Pradesh at Hyderabad, where the compensation was enhanced from Rs.40,000/- to Rs.1,00,000/-.
31. However, in view of the law laid down by the Hon'ble Supreme Court in Deepali Gundu Sarwase's case (3 supra) and in view of the reasons assigned above, confirming reinstatement of the respondent nos. 2 to 18 are ordered by the 1st respondent, these contentions, cannot hold sway.
32. Therefore, for the above reasons, we are of the view that the findings of learned single Judge are appropriate. They are well reasoned requiring no interference. Accordingly, we hold that these findings stand confirmed.
POINT No.3:-
33. In view of the findings on points 1 and 2, we hold that this writ appeal cannot stand.
34. In the result, the writ appeal is dismissed. Order of learned single Judge in W.P.No.15991 of 2009, dated 02.06.2017, stands confirmed. There shall be no order as to costs.
As sequel thereto, all miscellaneous petitions, if any, shall stand closed. Interim Order, if any, shall stand vacated.
J.K. MAHESHWARI, CJ M.VENKATA RAMANA,J DATE: 27.01.2020 RRR 14 THE CHIEF JUSTICE J.K. MAHESHWARI AND JUSTICE M.VENKATA RAMANA (Per Justice M. Venkata Ramana) WRIT APPEAL No. 923 of 2017 DATE: 27.01.2020 RRR